ISLAMABAD:
The federal government on Friday informed the Constitutional Bench (CB) of the Supreme Court that only 105 of the over 5,000 people accused of resorting to acts of violence on May 9, 2023 were prosecuted in military courts as there was solid documentary evidence against these 105 people.
As the seven-member CB resumed hearing the appeals filed against the SC’s October 2023 order about trial of civilians in military courts, Additional Attorney-General Amir Rehman responded to a query raised by a bench member a day earlier with regard to selection of accused for trial in military courts.
“There were approximately 5,000 suspects involved in the events of May 9. Of these, 105 suspects were taken to military courts, with solid evidence of their presence at the scenes of the incidents,” Rehman told the bench led by Justice Aminuddin Khan.
During the hearing, Justice Mussarat Hilali referred to the Plane Conspiracy Case of October 1999.
On October 12, 1999, the then prime minister, Nawaz Sharif, attempted to dismiss the then army chief, General Pervez Musharraf, who was returning to Pakistan from an official visit to Sri Lanka.
Nawaz Sharif allegedly ordered closing Pakistan’s airspace to deny Musharraf’s flight landing in Karachi. The plane, carrying Musharraf and over 200 passengers, reportedly had limited fuel, creating a potentially life-threatening situation.
In response, senior military officers loyal to Musharraf launched a coup, seizing control of the government and airports. The plane eventually landed safely in Karachi.
Alluding to the incident, Justice Hilali noted that despite the alleged attempt to stop a passenger plane carrying the army chief from landing in Pakistanan act that allegedly resulted in the military coup, Nawaz Sharif was not tried in a military court.
Responding to the observation, the lawyer for the Ministry of Defense, Khawaja Haris, stated that the Pakistan Army Act, 1952 does not deal with hijacking and that was the reason why the accused was not tried in a military court.
Haris argued that the Pakistan Army Act, 1952 applies only to individuals who violate the Official Secrets Act, 1923 and not to every terrorist.
Justice Hilali asked if military courts conducted trials based on the FIRs registered at police stations. She questioned how military courts could proceed with cases registered under the Pakistan Penal Code (PPC), 1860 and the Anti-Terrorism Act (ATA), 1997.
“The copies of the three FIRs provided to the court do not include provisions of the Official Secrets Act,” she added.
Haris told the bench that additional provisions could be included after investigation. Justice Muhammad Ali Mazhar noted that there is a separate procedure for adding further provisions and asked whether the investigation relied solely on police findings.
Khawaja Haris stated that once a suspect is in military custody, there is a distinct investigation system within the military.
Justice Hilali also sought clarification on who writes the judgment in military courts.
“As far as I know, the case is heard by one party, but the decision on punishment or reward is made by the commanding officer, who has not even heard the case. How can someone who has not heard the case decide on punishment or reward?” she asked.
Haris responded that the Judge Advocate General (JAG) branch of the military provides assistance in drafting the decision. Justice Hilali then asked the counsel as to who serves as the judge in military courts of other countries including the United States.
Justice Muhammad Ali Mazhar noted that officers preside over courts-martial the world over.
Khawaja Haris stated that the officers presiding over military courts are experienced in conducting trials. Justice Mazhar, however, intervened and told the lawyer that Justice Hilali is asking whether those officers also possess legal qualifications. The CB later adjourned the hearing till Monday.
